New Los Angeles County District Attorney George Gascon has drawn a lot of attention for his progressive new policies that are a sharp break from what most of us are used to hearing from traditionally law-and-order, lock-‘em-up prosecutors. On his first day on the job, Gascon announced that his office will, among other things: end cash bail, allowing people who are presumed to be innocent until proven guilty to be freed while awaiting trial; never seek the death penalty in any prosecution; stop filing all sentencing enhancements, including under the “3 strikes” sentencing law; allow re-sentencing of thousands of people currently in prison based on retroactive application of these sentencing policies; and prioritize release of people convicted of nonviolent crimes, those with demonstrated records of rehabilitation or otherwise deemed low risk for recidivism, senior citizens, people especially at risk for COVID-19, and people sentenced to adult prison terms as children. Gascon also announced he will re-open use-of-force investigations involving killings by police dating back to 2012.
Perhaps most notable, Gascon has issued a new list of “do not prosecute” offenses – laws that his office will simply not enforce. Except in special circumstances, LA will no longer file or prosecute criminal cases against anyone suspected of trespassing, disturbing the peace, being a minor in possession of alcohol, driving without a license, driving with a suspended license, making criminal threats, drug and paraphernalia possession, being under the influence of a controlled substance, public intoxication, loitering to commit prostitution, or resisting arrest. This policy is essentially the opposite of Mayor Rudy Giuliani’s “zero-tolerance” policing policy in New York City, where he ramped up enforcement of relatively minor, victimless crimes, which resulted in young racial minorities being disproportionately targeted by police and increased complaints of police misconduct and abuse of force.
Gascon’s policies are designed to revolutionize the roles of police and prosecutors in our society, ending our culture of mass incarceration for victimless crimes, and go well beyond what self-proclaimed “progressive prosecutors” like Vice President-elect Kamala Harris have advocated in the past when they have had the power to change the system. Gascon’s directives will free up the police and prosecutors to focus their time and efforts on investigating and prosecuting serious and violent crimes, while allowing other social services and community groups to address quality-of-life issues arising from drug addiction, family dysfunction, and homelessness.
George Gascon should be applauded for his courage in boldly re-imagining how our criminal justice system can best serve society. In order to make this transformation effective and complete, however, Gascon should consider adding another category of offenses to his “do not prosecute” list –sales of controlled substances. People who become addicted to illicit drugs and are not independently wealthy typically end up selling drugs to other people in consensual transactions in order to support their habit. Branding such people as felons who should be imprisoned does not help the drug addicts improve their lot in life, nor does it protect any “victims.” Studies show that people locked up are more likely to engage in criminal behavior in the future, not less likely, due to their exposure to the criminal system, especially if their incarceration occurs when they are young and most impressionable. Their felony conviction will make it difficult or impossible to find legitimate future employment in the legal market. And their sustained exposure to people convicted of all types of crimes while in custody is likely to cause them to emulate this new peer group.
It is unclear whether there are any benefits at all from locking up drug dealers. Anyone seeking drugs will simply buy them elsewhere in the marketplace. And the profit margins available in the illicit market ensure there will always be a steady stream of new sellers to replace anyone who gets caught and becomes imprisoned. Thus, the drug war becomes a game of whack-a-mole, with new sellers popping up every time an old one goes away, with the people going away becoming even more hardened criminals fully committed to a life of crime.
Prosecutors have always had the power and duty to decide which types of cases to pursue and which ones to decline. It is commonly accepted that one of the most important duties of a prosecutor is the exercise of “prosecutorial discretion,” deciding which potential criminal violations to turn into criminal cases, and which ones to let go. Prosecutors have a duty to do justice, not to maximize convictions. Only a small fraction of criminal violations end up being prosecuted, due both to limited resources of police and prosecutors, and public policy choices about which types of defendants deserve to be prosecuted and which prosecutions will improve the general welfare.
Prosecutors are free to use their discretion to refuse to prosecute victimless “crimes” – including consensual sex, gambling, and narcotics offenses. Prosecutors seeking to do justice could conclude that such prosecutions only harm society, by destroying the lives of those prosecuted and their families, imposing substantial expenses on taxpayers who must pay for prosecuting and incarcerating the non-violent defendants, and providing no countervailing benefit to the public.
Prosecutorial discretion is what allowed President Obama’s Deferred Action for Childhood Arrivals (DACA) policy, preventing deportation of hundreds of thousands of undocumented immigrants who arrived in the US as children. Although DACA beneficiaries have technically violated federal criminal immigration laws, the President, as head of the executive branch, is allowed to set the priorities and policies for prosecutions, and to carve out certain classes of offenses that will not be prosecuted. Prosecutorial discretion, however, can also be used for nefarious purposes, including targeting political enemies or racial or religious groups.
Hopefully, Gascon’s thoughtful approach to prosecutorial discretion will usher in a new era across the country, where everyone in the criminal justice system will think about how to use the system to do good, improve lives, and focus on protecting innocent people from being victimized by predators. For decades, the war on drugs has brainwashed many police and prosecutors into dehumanizing drug addicts and focusing their efforts on the futile task of rooting out consensual sales or products for which there is a high demand. Law enforcement and prosecution tend to attract people inclined to follow the leader and adhere to strict loyalty to a party line without debate, and thus electing bold visionaries like George Gascon with the courage to set the right tone at the top is the only way to achieve true progress in the criminal system.
Author: Raza Lawrence Esq. (Margolin & Lawrence)